Granting Nature Its Day in Court

I rarely write about politics in this blog – preferring to discuss issues that pertain directly to the water industry and sustainability. Yet I just had an experience with my class at Princeton that is worthy of note.

I have been teaching a class at Princeton University for the Princeton Environmental Institute for the last 16 years. The course is on environmental law and policy, and one of its key features is that I establish a moot court – the Supreme Court of Princeton. In moot court, the students get a chance to re-argue environmental cases – one half the class arguing each side of the case to the other half as the jury, and then they switch.

Recently, my class reargued the case Sierra Club v Morton – one of the most famous environmental cases to come before the Supreme Court. The Sierra Club was challenging a Forest Service decision to allow a massive ski development awarded to Walt Disney in the Sierra Mountains. Mr. Morton was the Secretary of the Interior, with ultimate responsibility for the Forest Service’s decision.

Standing is a principle that governs whether a party has the authority to seek the review of a grievance in court. Rooted in the “cases and controversies” clause of the U.S Constitution, standing is a requirement that the parties have suffered a specific injury-in-fact. Standing helps distinguish between a controversy heard by the judiciary – with its requirement of specific injuries to a party leading to a resolution, and the kind of controversy handled by the legislature – which is a policy debate leading potentially to legislation.

The Sierra Club purposefully did not allege any specific injuries to any of its members because it wanted the court to grant standing to the ecological resource itself. Their goal was that the court would rule that injury to the environment was enough to grant standing to the environment itself – to be represented by a suitable and bonafide agent. (The Sierra Club in this case of course.)

Despite beautiful dissents written by Justices Harry Blackmun and Justice William O. Douglas, who were joined by Justice Brennan, the majority of the court did not support extended standing to the environment, despite Justice Blackmun’s concern about who would be able to speak for the trees? By the way, the Sierra Club spoke for the trees in this case, because they had no problem revising their complaint to allege specific injuries to their members – and therefore gained standing under the existing rule to challenge the decision.

The US Supreme Court majority was worried that if the environment itself was granted standing then anyone could bring a case on environmental issues alleging injury to the environment, based on various policy perspectives. The Court felt strongly that developing policy on environmental issues is the purview of the legislature. The courts resolve specific cases with injuries to people.

Here is where gridlock comes in. For the first time in 16 years, despite skilled legal presentations for Secretary of the Interior Rogers Morton from members of my class – the entire class voted 12-0 to extend standing to the environment. Usually, the student juries for the case uphold the requirement of standing – even thought they may not like the Disney ski resort. Granting standing does seem to risk opening a Pandora’s box for the court – turning it into a debating ground over environmental policies and theories.

When I asked the class about why the separation of powers argument did not persuade them to uphold the injury-in-fact requirement, their answer was simple. In their experience as young adults, the legislative branch of government is unable to accomplish anything. Limiting policy debates for resolution in the legislative branch means that nothing will ever get done. Standing had to be offered to the trees in our court so that issues pertaining to the environment could be resolved at all.

Wow. What a fascinating and unexpected indictment of the political grid-lock and extremism that dominates our politics today. Very well educated and talented Princeton students do not see the legislative branch as a means to accomplish any suitable goals. Their answer is to expand the domain and power of the courts.

To turn back to the water industry, I must say that this reasoning is indirectly why I am at the helm of DC Water. Many have asked me over the years why I do not participate directly in elective politics. I like speaking to audiences, know how to raise money, and generally present a coherent and exciting agenda for people to get behind.

My answer is the same that my class offered. I do not see elective politics as how to get things done in this day and age. Today, you can accomplish most from an enterprise given the authority to act. That means working for the executive, and even more so, for a “utility” which by its definition is providing critical services to the people in our jurisdiction.

In the water industry, gridlock cannot prevail. The water must flow, standards must be met, problems must be solved. That is where I am most happy!